Executive Summary

Gender permeates the crime of genocide. It is woven into the perpetrators’ planning and commission of coordinated acts that make up the continuum of genocidal violence. It is through these gendered annihilative acts that perpetrators maximize the crime’s destructive impact on protected groups.

Female and male members of targeted groups, by the perpetrators’ own design, experience genocide in distinct ways by reason of their gender. Men and older boys are targeted as a consequence of the gendered roles they are perceived to inhabit, including those as heads of households, leaders, religious authorities, protectors, guardians of the group’s identity, and patriarchs. Assaults on women and girls pay heed to their roles as mothers, wives, daughters, bearers of future life, keepers of community’s and family’s honor, and sources of labor within the home. An understanding of what it means to be male and female in a particular society thus saturates perpetrators’ conceptions of their victims, and of themselves. In particular, the violence directed at women and girls during genocide is fed by existing misogynistic attitudes in society, and the traumatic impacts are magnified by the financial, social, cultural inequalities to which women and girls are subjected.

Genocide is often understood as a crime committed predominantly through organized mass killings—the majority of victims of which, both historically and today, tend to be male. Consequently, non-killing acts of genocide—more likely to be directed against female members of a protected group—are often cast out of the continuum of genocidal violence. Equally, in privileging the act of killing, other acts of violence committed against men and boys—such as torture, rape, and enslavement—have also been obscured.

Rohingya women and girls have suffered targeted atrocities at the hands of Burma’s security forces. Amounting to crimes against humanity and genocide, these attacks were gendered in their conception, commission, and consequences. Accordingly, gender must be central to any and all efforts aimed at justice and accountability for the crimes committed against the Rohingya.

Since August 2016, the Burmese military (Tatmadaw), Border Guard, and police forces have conducted a systematic campaign of brutal violence against Rohingya Muslims in Burma’s northern Rakhine State. These attacks come in the midst of a decades-long campaign of persecution of the Rohingya through discriminatory measures to police and control the group, including denying citizenship rights, restricting movement and access to healthcare, and limiting marriage and the number of children in families. While all members of the Rohingya population were targeted for violence, gender was integral to how the atrocities were perpetrated.

This brief seeks to bring to light the international crimes—crimes against humanity and genocide—committed against Rohingya women and girls since 2016 by Burmese Security Forces and highlight the role gender played in the design and commission of these atrocities. The military has long used rape as a weapon of war and oppression in its conflicts with ethnic groups, and in the recent attacks, Rohingya women and girls were targeted for particularly brutal manners of killing, rape and sexual violence, and torture.

In light of the gender dynamics at the root of Daesh’s violence, gender must also be at the center of accountability. With justice for Daesh beginning, this Briefing details how Iraq’s current legal framework precludes meaningful justice for women and girls. It highlights the gender gaps in Iraq’s criminal laws and identifies opportunities for broader reform to better protect Iraqi women and girls from sexual and gender-based violence.

Introduction

For years the world watched in collective horror as Daesh committed brutal atrocities. Central to this violence was sexual and gender-based violence, with explicit targeting of women and girls. Daesh used rape, sexual slavery, forced marriage and torture—distinct crimes on their own as well as constituent elements of genocide, crimes against humanity and war crimes—as tools for recruitment, conversion, forced indoctrination, and the fundamental destruction of community cohesion.1 For many, the only thing that stood in opposition to these crimes was the prospect, however far away, of justice.

Justice, however, is complex. It requires accountability, redress and a focus on preventing the recurrence of violations. Justice efforts must be independent, credible, inclusive, and accepted by impacted communities, with special respect and recognition for the dignity of victims. Importantly, and as this Briefing illustrates, it must reflect the full scope and scale of the crimes that occurred.
As the international community and the Iraqi government begin the process of holding members of Daesh accountable for their crimes, it is critical to examine the legal systems that will be responsible for these prosecutions. Prosecutions to date, which have all been conducted under Iraq’s 2005 counter-terrorism law, have failed human rights standards and do not suffice the interest of justice.

This Briefing highlights one such example—specifically how Iraq’s current laws fall far short of the requirements for justice, as they are unable to punish the most egregious of Daesh’s gender crimes. Iraq’s Penal Code is a patriarchal patchwork rooted in preexisting peacetime gender inequalities and violence.2 The way and manner in which the Code defines sexual and gender-based violence crimes is steeped in language and perspectives that are inherently and overtly discriminatory against women and fall short of international standards. Any justice mechanism organized under these laws will fail to provide full accountability and redress to Daesh’s female victims.

In order to highlight these challenges, this Briefing: (i) identifies particular categories of Daesh’s gender crimes and considers how these crimes are currently codified in Iraqi law; (ii) details the gaps where Iraq’s laws do not entirely capture the ways in which Daesh committed sexual and gender-based violence; and (iii) describes international standards for defining and understanding the many facets of these crimes.

A complete reckoning with the planned and inherently gendered elements of Daesh’s violence is essential for Iraq to begin the transition out of armed conflict. These first steps of putting this history behind it must provide justice for victims, combat these victims’ marginalization, and prevent future violations against women, girls and other communities targeted on behalf of their gender.

The United States (US) imposes restrictions on its foreign aid that limit both services and speech related to abortion. They attach to nearly all recipients of foreign aid—limiting the activities, speech, and information that can be legally provided by doctors, health professionals, experts and advocates. These restrictions violate the US’s fundamental human rights obligations to protect free speech and free association.

This brief explains the restrictions on free speech and association imposed by the US Congress (the Helms and Siljander Amendments) and by the executive branch (the Global Gag Rule [“Gag Rule” or “GGR”]). It then details the US’s human rights obligations to respect freedom of speech and association, focusing on obligations under the International Covenant on Civil and Political Rights (ICCPR). The ICCPR only allows for the restriction of these rights in narrow circumstances: where the restriction is adequately provided by law, where it serves a legitimate aim (such as national security or public health), and where the state demonstrates that the restriction is necessary and proportionate in achieving that aim. This brief demonstrates that the Helms and Siljander Amendments and the GGR all fail that strict test, and therefore violate US obligations to ensure and protect the rights to free speech and association guaranteed under international human rights law.

FOIA: The Helms Amendment, Global Gag Rule, and Other U.S. Abortion Restrictions

March 6, 2017 – Ongoing

Beginning in March 2017, GJC filed FOIA requests to the State Department, the Department of Health and Human Services (HHS), and USAID to request “information on all emails, internal memos, contracts, grants and awards since November 8, 2016 that discuss or mention the Helms amendment, Global Gag Rule, the ‘Protecting Life in Global Health Assistance’ policy, or other US abortion restrictions on foreign assistance.”

GJC received expedited processing on these requests with State and HHS on the grounds that “failure to obtain requested information…could reasonably be expected to pose an imminent threat to the life or physical safety of an individual”; the USAID request was not granted expedited processing.

August 19, 2013 – December 9, 2016Case F-2013-14923

In August 2013, GJC submitted a FOIA request for information on (1) State humanitarian assistance awards to Syria and neighboring countries in FY 2012 and 2013 and (2) State awards, grants, and internal memos pertaining to U.S. funding for efforts aligning with the UK’s Preventing Sexual Violence Initiative (PSVI). After a three-year FOIA process, GJC received documents in December 2016 containing:

Timeline:

March 3, 2015 – January 10, 2017Case F-00127-15

GJC petitioned USAID for information on “all USAID contracts, grants and awards related to the funding of the Mae Tao Clinic on the Thai-Burma border to cover operational and support costs since 2008.” This request was part of the August 12th Campaign, dealing specifically with the services available to rape victims in Burma and those who are displaced to the Thai-Burma border.

Abortion-related sections of USAID contracts (emphasis added):

(1) Ineligible Goods and Services. Under no circumstances shall the recipient procure any of the following under this award:

(i) Military equipment,

(ii) Surveillance equipment,

(iii) Commodities and services for support of police or other law enforcement activities,

Daesh, also known as ISIS/ISIL, is committing genocide against religious and ethnic minorities, targeting women and girls in particular. The time is now for the EU to fulfil its international legal obligations to prevent and prosecute genocide. This means the EU must recognize this ongoing genocide, take steps to prevent and suppress it, and call for and facilitate its prosecution.

Daesh is perpetrating genocide of the Yazidi, Christian, and other minorities as acknowledged by US Secretary of State John Kerry, the EU Parliament, Iraq, and others. The 1948 Genocide Convention was passed to protect distinct values central to humanity: the right of protected groups to their continued existence and the right of all people to live in a world enriched by diversity and marked by tolerance. Genocide is defined as acts to destroy national, ethnic, racial or religious groups, as distinct entities. The joint attacks against Daesh in August 2014 to “avert potential genocide” of the Yazidi saved lives but did not stop Daesh from continuing to perpetrate genocide.

The international legal framework designed to keep the world free from genocide is distinct from that of other international laws and protects distinct values. Strategies to counter terrorism including, to prosecute and deny “safe havens” for terrorists, without more, do not fulfill the nonderogable obligations of states and international entities to stop genocide.

The Genocide Convention’s effectiveness in deterring genocide depends on states fulfilling their obligationsto take “all possible measures” individually and collectively to prevent, suppress, and punish genocide. The failure of states and international organizations to address Daesh genocide crimes undermines the legitimacy of the Genocide Convention and the effectiveness of counter terrorism efforts.

This brief of amicus curiaethe Global Justice Center (GJC) is submitted pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure and Ninth Circuit Rule 29-2 with the consent of all parties to the case. GJC is a non-governmental organization dedicated to promoting the enforcement of international law in a progressive, non-discriminatory manner. Thus, GJC has a direct and vital interest in the issues before this Court, which will impact the ability of future litigants to vindicate their rights under international treaties. No part of this brief was authored by a party or party’s counsel, nor did any party, party’s counsel, or other person outside of GJC contribute money intended to fund the preparation of this brief.

The District Court dismissed Plaintiff’s case below both because it found that Plaintiff lacked standing to bring its claims, and because it found the issues in this case to be non-justiciable political questions. Order Granting Mot. to Dismiss at 5-7. This amicusbrief will address the latter of these issues, arguing that the District Court erred in applying the political question doctrine to Plaintiff’s claims.

In Baker v. Carr, the Supreme Court outlined six factors any of which may justify abstention from a case as a political question. 369 U.S. 186, 217 (1962). The District Court found two of these factors to be implicated by the case at bar: textual commitment to one of the political branches, and a lack of judicially discoverable and manageable standards. Order Granting Mot. to Dismiss at 5-7. This brief will argue that the meaning of Article VI of the Nuclear Non-Proliferation Treaty (NPT), and the question of whether or not the United States (U.S.) is in compliance with it are not political questions, and in particular, that the District Court was wrong to hold that no judicially manageable standards are available to guide its analysis of these questions. This brief will identify a rich array of judicial and non-judicial sources that could inform the court’s development of new standards. This brief will also contest the outdated and overbroad statement of Executive authority over foreign affairs that led the District Court to find that resolution of this issue was textually committed to the Executive.